The Employment Laws of Hong Kong and China

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The Employment Laws of Hong Kong and China

RBE PriceBA, LLB, LLM (University of Tasmania)

Assistant Professor of Law (Visiting) City University of Hong Kong

with

Björn AhlDr. iur. (Heidelberg University)

Assistant Professor of Law, City University of Hong Kong

contributing a chapter, ‘Employment Termination in the PRC’

LexisNexisHong Kong • Singapore • Malaysia

2009

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ISBN: 978-988-8016-81-5

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Preface

This fi rst edition of Employment Laws of Hong Kong and China is intended to fi nd an audience among legal practitioners in Hong Kong who fi nd them-selves in need of an clear and up-to-date exposition of local employment law. There are chapters here on the legislative framework of Hong Kong employ-ment law, the approaches to identifying employment, termination and wrong-ful dismissal. I have tried in this modestly sized work to capture something of the local fl avour of Hong Kong laws on employment by raising reform options in many chapters. A large chapter on wrongful dismissal in Hong Kong has been included so that this most important aspect of local law is given its due recognition. There are also chapters discussing employment law as it is particularly experienced in Hong Kong and a notable one deals with confi dential information. In addition, coverage is given of the numerous new statutory developments on employment law in the PRC and in this regard particular focus is given the emerging laws on termination, dispute resolution and workplace safety.

It is hoped that this book will encourage practitioners and the bench alike to refl ect on the strengths and weaknesses of the law and to positively assist in the drive to reform it, or to give further thought to what is unique about it. It is also hoped that legal professionals in Singapore and Malaysia will see correspondences between Hong Kong and their law due to a common history of British colonialism. Above all, it is wished that the book assists in a shared endeavour to make the law clearer and more understandable to the people it regulates.

For those who are drawn to these pages for their coverage of key laws in the PRC take both caution and heart: while the law is extremely formative, the rule of law is tentatively but unmistakably taking hold on the mainland. We do, however, need to see beyond the present diffi culties. The PRC’s laws on employment are sometimes oddly translated or haphazardly applied. On occasions a law is repeated in two or more statutory instruments which are decades apart. The statutory material often has little or no easily available case law to offer interpretation and, where case law exists, the reported reasoning of judges can be slight. This is a function of how nascent the law is as well as the newness of judges to applying it. National and provincial laws appear to overlap. Enforcement of the old and new laws is a highly problematic area from the payment of wages on time to the effective prosecution of OSH transgressors. For all these shortcomings, a courageous start has been made on codifying individual employment rights and providing a meaningful system of employee remedies in the PRC. Much of it relies on a legislated combination of imported labour practices and a distinctively Chinese approach to the employment relationship.

The author also hopes that this book’s audience will lend a hand in shaping its direction and content in future editions. In this way it will be able to

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Preface

celebrate what is distinctive in Hong Kong and PRC law as well as maintain a commentary on those matters which are the most practically useful. Much of Hong Kong’s employment law provides only what is absolutely necessary and much of the PRC’s is focused on what is ideal. In a small way, the author hopes that by taking the step of writing on these legal systems what is deemed necessary in Hong Kong can be enlarged and what currently aspirational in the PRC can one day result in consistent outcomes for those who the law tries to protect. Particular thanks go to Professor Charles Rickett (University of Queensland) for his review of the chapter on confi dential information, Assistant Professor Bjorn Ahl (City University of Hong Kong) for supplying a chapter on employment termination in the PRC and legal practitioner Ms Holly Allen (the Helpers for Helpers Legal Service) for her appraisal of the chapter on employing foreign domestic helpers. Finally Ms Sasha Thomas-Nuruddin deserves particular credit for propelling the book along the path to publication.

RBE PRICEHong Kong,

25 November 2009.

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Contents

Preface v

Table of Cases ix

Table of Statutes xxv

Table of Subsidiary Legislation 000

Table of Foreign Legislation 000

Index 000

Part 1 – Commentary on the employment laws of Hong Kong 1

Chapter 1 Overview of Hong Kong Employment Laws 3

1 Regulation of Employment Relationship 3 2 Rights and Duties of Employers and Employees 9

Chapter 2 Identifying an Employment Relationship 21

1 Distinguishing Between Employers and Contractors 21 2 Casual Employees 29 3 Vicarious Liability of Employers 32 4 ‘Course of Employment’ For Purpose of Employees’

Compensation Ordinance 34 5 Liability of Principal Contractors 37

Chapter 3 Workplace Safety Laws 43

1 Duty to Provide Safe System of Work at Common Law 43 2 Statutory Occupational Safety and Health Systems 50 3 Workplace Safety and Adverse Weather 57

Chapter 4 Employment Termination 65

1 Unfair Dismissal 65 2 Summary of Wrongful Dismissal 75 3 Termination of Employer in Particular Circumstances 79

Chapter 5 Wrong Dismissal 99

1 General Features of Wrongful Dismissal 99 2 Statutory Wrongful Dismissal Scheme in Hong Kong 104 3 Constructive Dismissal 109 4 Subsistence of Common Law Claims 113

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Contents

viii

Part 2 – Employment issues of special interest in Hong Kong 121

Chapter 6 Coverage of Employment Discrimination Laws 123

1 Ordinances on Employment Discrimination 123 2 Reform Issues 138

Chapter 7 Employing Foreign Domestic Helpers 145

1 Legal Standing 145 2 Rights and Duties of Employers and FDHs 147 3 Employment Termination Issues 152 4 Reform Issues 156

Chapter 8 Confi dential Information: Protection of Client Lists and Trade Secrets 161

1 Confi dential Information 161 2 Remedies 170 3 Fiduciary Duty Issues 172

Part 3 – Commentary on the Employment Laws of the People’s Republic of China 177

Chapter 9 Overview of PRC Employment Laws 179

1 Regulation of Employment Relationships 179 2 Rights and Duties Under an Employment Contract 186 3 Workplace Safety 194 4 Reform Issues 201

Chapter 10 Termination of Employment 207

1 Sources 207 2 Types of Termination 208 3 Automatic Ending 208 4 Termination by Agreement 209 5 Termination by Employee 209 6 Termination by Employer 211 7 Termination Payments 219 8 Employer’s Rights After Termination 221

Index 000

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